Occupiers' Liability — SQE1 FLK1 Tort Law

Your neighbour has standing permission to cut across your back garden to reach the lane. You told him once, clearly, to keep out of the garage. Weeks later his children's ball rolls under the garage door. He lifts the door, steps in to fetch it, and trips over a chainsaw you left on the floor. His hand is badly cut. Is he still a visitor? No.

One lifted door, and he has moved from one Act of Parliament to another. This is Occupiers' Liability, and two statutes govern the whole field. The Occupiers' Liability Act 1957 covers lawful visitors. The Occupiers' Liability Act 1984 covers everybody else. Which one applies decides almost everything that follows. Keep your neighbour in mind. We are coming back for him.

Here is the route. First, who counts as an occupier and what counts as premises. Then the line between visitors and non-visitors, which is the line that decides everything else. Then the 1957 Act and its common duty of care, with children, professionals and contractors. Then the 1984 Act and its three conditions. Then defences, exclusion notices, and the overlaps you should mention in an exam.

Start with the word occupier, because neither Act defines it. The courts do. An occupier is anyone with a sufficient degree of control over premises. You need not own the property. You need not be there all the time. Could you take steps to make the place safe? If you could fix the danger or warn about it, you are probably an occupier.

And more than one person can occupy the same premises at the same time. A married couple managed a pub for the brewery that owned it. A customer was killed on the stairs. Both the brewery, as owner, and the couple, in day to day control, could be occupiers, each liable to the extent of their control. Wheat v Lacon, from 1966. Control is the thread.

Premises is deliberately broad. Under s.1(3)(a) of the 1957 Act it covers land, buildings and other structures, fixed and moveable structures, vessels, vehicles and aircraft. So a ship counts. A caravan counts. Scaffolding, a stairway, a path, an entrance. Even a ladder.

Which is where control bites. A farmer supplied a ladder to a bricklayer he had engaged to build on his land. The ladder was too weak and gave way. A ladder can be premises. But once the farmer handed it over he was no longer its occupier, so the 1957 Act did not catch him. He was still liable in ordinary negligence for supplying it. Wheeler v Copas, from 1981.

Now the question that decides your whole answer. Visitor, or non-visitor? A visitor enters with the express or implied permission of the occupier. A non-visitor has none. Usually a trespasser, but it also catches someone who exceeds their permission by going where they were told not to go, and someone whose permission has been revoked.

Run it as two questions. Did they have express or implied permission to enter? Then: did they enter for a purpose within the scope of that permission? Only two yeses take you to the 1957 Act. You can already see where our neighbour falls when he lifts that garage door.

An invitee comes for a business or public purpose, like a customer in a shop. A licensee has social permission, like a friend at your house. The 1957 Act abolished the old distinction. Both are visitors, both get the same protection.

Two more routes in. Under s.5(1), a person entering in the exercise of a right conferred by a contract is owed the common duty of care. A builder under a contract, a ticket holder. And under s.2(6), a person entering in the exercise of a right conferred by law is a visitor whether or not they have permission. A meter reader arrives unannounced. Visitor, or not? Visitor.

So, the 1957 Act. Section 2(1) is the heart of it, imposing the common duty of care on the occupier towards all visitors. Take such care as in all the circumstances of the case is reasonable. Reasonable to see that the visitor will be reasonably safe, using the premises for the purposes for which they are permitted to be there. Notice the word reasonably, twice. Not a guarantee of absolute safety.

Section 2(2) owes that duty to all visitors, whatever brought them there. What can change is the standard, depending on what the occupier knows about the particular visitor. And here is the practical gift. You never argue a duty of care from scratch. The statute hands it to you.

Warnings, under s.2(4)(a). Where the occupier knows, or has reasonable grounds to believe, that a danger exists, and the visitor is unlikely to discover it, the occupier must warn. But the warning has to work. It must be enough to enable the visitor to avoid the danger. Pointing vaguely towards a hazard is not enough.

Children get more, under s.2(3)(a). An occupier must be prepared for children to be less careful than adults. If you know, or ought to know, that children are likely to come, you must expect a child to behave like a child. Not child proof. But think about what a child might reasonably do, and take steps accordingly.

The leading case is a hard one. A seven-year-old child died after eating poisonous berries from a tree in a public park. The berries were attractive to children. No warning signs. The corporation was liable: it knew children used the park, knew the berries were poisonous and knew children would be drawn to them. Glasgow Corporation v Taylor, from 1922.

And note what follows for warnings. A sign may not discharge the duty to a child at all. If the child is too young to read it, or too young to understand it, it does nothing. The occupier may have to fence the danger off or remove it entirely.

Professionals go the other way, under s.2(3)(b). An occupier may expect a person who comes in the exercise of their calling to appreciate and guard against the special risks ordinarily incident to it. That holds so far as the occupier leaves them free to do so. A surveyor inspecting a building. An electrician checking wiring. They are expected to know their own trade.

Independent contractors, under s.2(4)(b). The 1957 Act does not make the occupier liable for damage caused by a contractor's work. But you must take reasonable care to select a competent contractor. A hotel taking the cheapest of three quotations from a man advertising online, without asking whether he holds any electrical qualification, has not done that.

Section 4 extends the duty to the state of the premises and things done to them. Fixtures, fittings, furniture, equipment provided for visitors. Chairs in a waiting room must not be broken. It also reaches things brought in by third parties, but only where you permitted them and can control or remove them.

Now cross the line, to the 1984 Act and non-visitors. Before it, the common law on trespassers sat in a controversial decision of the early 1970s. Here is the critical difference. Under the 1957 Act the duty arises the moment a visitor walks in. Under the 1984 Act, no duty arises at all until conditions are met.

Three conditions, in s.1(3), and all three must be satisfied. One: the occupier is aware of the danger, or has reasonable grounds to believe it exists. Awareness, not certainty. Two: the occupier knows, or has reasonable grounds to believe, that the non-visitor is in the vicinity of the danger, or may come into it. Three: it is a risk against which the occupier may reasonably be expected to offer some protection.

That third one is policy. The court weighs the burden on the occupier against the social value of the activity. And the whole test is cumulative. Fail one hurdle and there is no duty at all.

Try it. A landowner grazes sheep on rough ground crossed by a well-worn path. Villagers walk it daily, none with any right to. A brick culvert under the path collapsed last winter, leaving a hole hidden by long grass. Nobody told him and he has not been there for two years. A walker falls in at dusk. Duty, or no duty?

No duty. Condition two is met: he knows people cross. Condition one is not: nobody told him about the culvert and he had no reason to suspect it. The conditions are cumulative, so the claim fails there. And note what the Act does not require. There is no duty to inspect for dangers you do not know about.

If all three conditions are met, the standard is still lower. Under s.1(4), take such care as is reasonable in all the circumstances to see that the non-visitor does not suffer injury. There is no common duty of care here. The focus is on what the occupier can reasonably do.

Then s.1(6), and be precise about this one. It is the volenti provision. No duty is owed under the 1984 Act in respect of risks willingly accepted by the non-visitor, decided on the same principles as in negligence generally. It says nothing in terms about obvious dangers. That rule comes from the case law built on it.

Above all this one. A man ignored prominent signs saying dangerous water, no swimming, and dived headfirst into a shallow lake in a country park. He broke his neck. Liable, or not liable? Not liable, under either Act. The risk was obvious, and a reasonable adult understands the danger of diving into unknown water. Tomlinson v Congleton, from 2003.

The other limit is timing. A trespasser dived from a slipway into a harbour around midnight in midwinter and struck submerged piles. No duty. Whether the conditions are satisfied is judged at the time of the alleged breach. At midnight in winter the occupier had no reasonable grounds to believe anyone would be diving there. In summer daylight, different answer. Donoghue v Folkestone Properties, from 2003.

Defences, and two of them get confused constantly. Volenti non fit injuria means to a willing person, no injury is done. It is complete: succeed, and the claimant gets nothing. It needs full knowledge of the risk and voluntary acceptance of it. Contributory negligence, under the Law Reform (Contributory Negligence) Act 1945, is partial. Damages are simply reduced.

Third, illegality. A burglar injured while breaking in may find the claim barred by ex turpi causa. But it is not an automatic bar. The modern approach is proportionate, weighing the connection between the illegality and the claim, and public policy.

Exclusion clauses, and here the textbooks lead people astray. Section 2(1) of the 1957 Act actually permits an occupier to extend, restrict, modify or exclude the common duty of care, by agreement or otherwise. The 1957 Act does not forbid exclusion. So where does the limit come from?

From two other statutes. Section 2(1) of the Unfair Contract Terms Act 1977 stops a business occupier excluding liability for death or personal injury caused by negligence. Section 65 of the Consumer Rights Act 2015 does the same against a consumer. No reasonableness test for personal injury. The term simply has no effect. Exclusions of property damage must pass a test of reasonableness or fairness.

One qualification. A purely private occupier, not carrying on a business, is not caught by those statutes and has more freedom to exclude, subject to adequate notice. And the 1984 Act has no express provision on exclusion at all. What it gives you is s.1(5): the duty may be discharged by reasonable steps to warn, or to discourage people from running the risk.

Finally, the overlaps worth a sentence in any answer. A landlord stops being an occupier once the tenant takes possession and control goes. But a landlord who keeps the common parts, the staircase, the hallway, the lift, occupies those. The Defective Premises Act 1972 adds separate duties for landlords and builders.

A word on how SQE1 tests this. You will not be asked to recall case names or section numbers. You get a scenario, five answers, and one instruction: pick the best. So learn the classification and the tests. The names in this episode are memory pegs, nothing more.

If you keep only three. Wheat v Lacon, where occupation is control and two people can occupy the same premises at once. Glasgow Corporation v Taylor, the poisonous berries, where an occupier must expect a child to be less careful than an adult. And Tomlinson v Congleton, the shallow lake, which is the limit on all of it: adults who choose an obvious risk cannot blame the occupier.

Four traps the examiners set. One: never assume a trespasser is owed a duty. The claimant must satisfy all three conditions in s.1(3). No knowledge of the danger, no reason to think anyone is around, or no reasonable expectation of protection, and no duty arises.

Two: a warning notice is not an automatic get-out. Under s.2(4)(a) it does not absolve the occupier unless it is enough to make the visitor reasonably safe. Against a child too young to read it, it is worth nothing.

Three: do not mix up the two defences. Volenti is complete and needs full, voluntary acceptance of the risk. Contributory negligence is partial and needs only a failure to take care for your own safety. The volenti threshold is far higher, so contributory negligence is usually the answer.

Four: the sign saying the proprietor is not responsible for accidents on these premises. For a business occupier facing a personal injury claim that term is void, and no amount of prominence saves it. But watch the loss. That same notice can still be tested for reasonableness against a ruined coat.

Quick check, and you have met this man already. A homeowner tells his neighbour he may cut across the back garden to reach the lane, but must keep out of the garage. Weeks later a ball belonging to the neighbour's children rolls under the garage door. He lifts it, steps inside to fetch the ball, and trips over a chainsaw left on the floor, cutting his hand badly.

Which regime governs the duty owed to him at that moment? Three candidate answers. One: the 1957 Act, because he had general permission to come onto the property. Two: the 1957 Act, because he entered only briefly, to recover his own property. Three: the 1984 Act, because he went beyond his permission. Pause here if you want a moment.

The answer is three. Permission may be limited by area. A visitor who goes where he has been told not to go loses the protection of the 1957 Act for that part of the premises. As one judge put it, when you invite a person into your house to use the staircase, you do not invite him to slide down the bannisters.

A visitor on the garden path, a trespasser in the garage. So his hand is decided under the 1984 Act. Why the others fail. One, because the permission was expressly limited and never extended to the garage. Two, because neither the brevity of the entry nor his reason for it enlarges it.

Five things to take away. One: an occupier is anyone with sufficient control over premises, and more than one person can occupy the same premises at once. Two: classify first. Visitor, and you are in the 1957 Act. Non-visitor, and you are in the 1984 Act. Our neighbour changed category by lifting a garage door.

Three: under the 1957 Act the common duty of care arises automatically. Raised for children, relaxed for professionals, and a warning helps only if it makes the visitor reasonably safe. Four: under the 1984 Act nothing arises until all three conditions in s.1(3) are met.

Five: a business occupier cannot exclude liability for death or personal injury caused by negligence. That limit comes from the Unfair Contract Terms Act 1977 and the Consumer Rights Act 2015. Next time, Product Liability.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.